Aggarwal & Aggarwal

Case [2020] FCCA 2659

FEDERAL CIRCUIT COURT OF AUSTRALIA

Aggarwal & Aggarwal [2020] FCCA 2659

File number:

MLC 4104 of 2018

Judgment of:

HER HONOUR JUDGE C. E. KIRTON QC

Date of judgment:

10 December 2020

Catchwords:

FAMILY LAW – Children – interim parenting – father’s application for parenting orders – application in a case by the father seeking urgent reinstatement of spend time arrangements – unilateral suspension of time by the mother – significant family violence perpetrated by the father against the mother – allegations of physical and sexual assault during the marriage – father charged with and pleaded guilty to unlawful assault against the mother – cultural issues – father of Indian ethnicity – final family violence order protecting the mother and the child against the father – family violence order extended for three years – family report recommends that father’s time with the child be contingent upon the father attending therapy with a culturally informed therapist – father does not attend for 6 months – father attends on three occasions – applicant’s legal representative fails to disclose to the court – material omission – daytime spend time arrangements suspended by the Court – whether the father should spend time with the child pending final hearing – whether the father poses an unacceptable risk of harm to the child – where the father denies allegations of family violence – where father blames the mother for instances of family violence – father’s attitude of male dominance – where the father lacks insight – cultural barriers to addressing family violence – consideration of s.60CC factors – statutory duty to give greater weight to s.60CC(2)(b) – application of ss.60CC(3)(j) and (k) – best interests of the child as paramount consideration – appointment of an independent children’s lawyer – father’s time with the child suspended until further order – application in a case dismissed.

Legislation:

Family Law Act 1975 (Cth), ss 11F, 60B(1),(2), 60CA, 60CC(2)(a), (b), 60CC(2A), 60CC(3)(a)-(m), 61DA (1)-(4), 62B, 62G(2), 64B(1), 65D, 65DA(2), 68L(2), 102NA

Federal Circuit Court Rules 2001 (Cth), r 13.04

Cases cited:

AMS v AIF (1999) 199 CLR 160

Goode v Goode (2006) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156.

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark  (2009) FLC 93-405

U v U (2002) 211 CLR 238

Waterford & Waterford [2013] FamCA 33

Number of paragraphs:

111

Date of hearing:

18 September 2020

Place:

Melbourne

Counsel for the Applicant: 

Ms Foong

Solicitor for the Applicant: 

Mirabellas Solicitors

Counsel for the Respondent:

Mr Allen

Solicitor for the Respondent: 

Knight Family Lawyers

ORDERS

MLC 4104 of 2018
BETWEEN:

MR AGGARWAL
Applicant

AND: MS AGGARWAL
Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

10 DECEMBER 2020

THE COURT ORDERS THAT:

1.All extant applications be adjourned to the Federal Circuit Court of Australia on 26 February 2021 at 9.30 am for Mention.

2.Until further order, Order 4(b) of the Interim Orders made 8…

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AGLC
Aggarwal & Aggarwal [2020] FCCA 2659
Case
[2020] FCCA 2659
Decision Date

CaseChat Overview and Summary

This case concerned an application by the father for the urgent reinstatement of parenting time with the child, X. The mother had unilaterally suspended the father's time with X. The dispute arose in the context of significant family violence perpetrated by the father against the mother, including allegations of physical and sexual assault during the marriage, for which the father had pleaded guilty to unlawful assault. A final family violence order protecting the mother and child against the father had been extended for three years.

The court was required to determine whether the father posed an unacceptable risk of harm to the child, pending a final hearing. Key issues included the father's denial of family violence allegations, his tendency to blame the mother, his attitude of male dominance, his lack of insight into his behaviour, and cultural barriers to addressing family violence. The court also had to consider the best interests of the child, applying the factors set out in section 60CC of the *Family Law Act 1975* (Cth), with a statutory duty to give greater weight to the child’s right to safety.

Her Honour Judge C. E. Kirton QC applied a conservative approach, consistent with the best interests of the child and the principles for interim matters. The court considered the primary considerations in s.60CC(2), giving greater weight to the child’s right to safety, and also considered the additional considerations in s.60CC(3). The court noted the father's failure to attend therapy as recommended by a family report, and a material omission by his legal representative in failing to disclose certain information to the court. The presumption of equal shared parental responsibility did not apply due to reasonable grounds to believe the father had engaged in family violence.

The court ordered that the father's daytime spend time arrangements be suspended until further order. The father's application in a case and the mother's response were dismissed. An Independent Children's Lawyer was appointed to represent the child X, and Victoria Legal Aid was requested to arrange such representation. The court also noted provisions regarding unrepresented parties in proceedings involving family violence.

Orders

Orders of the court

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

10 DECEMBER 2020

THE COURT ORDERS THAT:

1. All extant applications be adjourned to the Federal Circuit Court of Australia on 26 February 2021 at 9.30 am for Mention.

2. Until further order, Order 4(b) of the Interim Orders made 8 November 2018 be suspended.

3. The Applicant Father be at liberty to provide a copy of the Family Report by Dr B, dated 17 December 2019 (Family Report) to Dr C, psychiatrist.

4. The Application in a Case filed by the Applicant Father on 28 August 2020 and the Response filed by the Respondent Mother on 14 September 2020 be dismissed.

5. The parties’ costs of and incidental to the Applicant Father’s Application in a Case filed on 28 August 2020 and the Response filed by the Respondent Mother on 14 September 2020 be reserved.

6. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the child X born in 2016 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such an arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

(a) Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.

(b) Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.

(c) The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ which is published at (http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccwweb/about/policies-and-procedures/guidelines-independent-childrens-lawyer), and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

(d) The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than five business days before the trial.

7. Further to Order 3, copies of the Family Report, if accompanied by a copy of this Order, may be given to:

(a) Any Independent Children’s Lawyer in the proceedings.

(b) A child protection authority.

(c) A State or Territory legal aid authority.

AND that no person release the Family Report, or provide access to the Family Report, to any other person.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of s. 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s. 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

E. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

F. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a) The filing of documents;

(b) The payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or

(c) Any other procedural issues;

The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

G. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.

IT IS NOTED that publication of this judgment under the pseudonym Aggarwal & Aggarwal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

I have determined that:·Until further order, Order 4(b) of the Interim Orders made on 8 November 2018 remain suspended.·An Order will be made pursuant to s.68L of the Act for X to be independently represented and Victoria Legal Aid will be requested to arrange such representation. BACKGROUND The Father was born in India in 1989 and is aged 31. After completing school the Father moved to Australia to complete a diploma. The paternal grandparents continue to reside in India[2]. The Father has worked as a labourer[3] and has subsequently obtained work as a factory worker[4]. [2] Family Report, Dr B, 17.12.19 (Family Report) at [6].[3] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.18 at [32].[4] Father’s Affidavit, affirmed 27.8.20 and filed 28.8.20 at [68]. The Mother was born in Country D in 1990 and is aged 30. The maternal grandparents were born in Country E and later moved to Country D. The Mother immigrated with her family to Australia at the age of thirteen. The Mother completed year 12 and then completed a course of study, before working with her father in his business. More recently the Mother has commenced working with the Employer F[5]. [5] Family Report at [3]-[4]. The parties met via Facebook in 2015 and commenced living together in Suburb G in 2016. The parties married in 2016 and X was born in 2016. In early 2017 the parties moved to Suburb H. The Mother’s parents live nearby in Suburb J[6]. [6] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.17 at [7]. The parties separated on 9 August 2017[7]. The separation arose in circumstances of family violence which occurred on 9 August 2017 in the presence of X (9 August 2019 Incident). The Police attended the parties’ home on 9 August 2017 and on 10 August 2017 an Interim Intervention Order was made at the Magistrates’ Court at Suburb K on the Application of Victoria Police, with the Father named as the Respondent and the Mother and X named as the Affected Family Members. On 14 December 2017 the Father consented to a Final Intervention Order at the Magistrates’ Court at Suburb K for a period of twelve months[8]. The Father was also charged with unlawful assault upon the Mother as a result of the 9 August 2017 Incident. On 28 November 2017 the Father pleaded guilty at the Magistrates’ Court at Suburb K to unlawful assault. The Father was sentenced, without conviction, to a one year good behaviour bond and gave an undertaking to participate in a men’s behaviour change program. The Father subsequently enrolled in a Men’s Behaviour Change Program with L Counsellors (Suburb M)[9]. [7] Father’s Affidavit affirmed 13.4.18 and filed 17.4.18 at [8]-[10]; Mother’s Affidavit affirmed 21.6.18 and filed 25.6.18 at [9]-[13].[8] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.18 at [8]-[9] and Annexure “-1”. [9] Father’s Affidavit, affirmed 13.4.18 and filed 17.4.18 at [11]-[12] and Annexures “-2” and “-3”. At the time of separation X was 11 months old and he remained living with the Mother. PROCEDURAL HISTORY

Evidence

Evidence Before The Court

The circumstances in which the Interim Intervention Order was made on 10 August 2017 and 14 December 2017 arose as a result of the 9 August 2017 Incident. The 9 August 2017 Incident is discussed in paragraph 11 and in relation to s.60CC(3)(j). (iii) Any evidence admitted in proceedings for the order There was no evidence before the Court of any evidence admitted in any proceeding involving the Interim Intervention Order made on 10 August 2017 and the Final Intervention Order made on 14 December 2017.(iv) Any findings made by the court, or in proceedings for, the order There was no evidence before the Court of any findings by the Magistrates Court at Suburb K in any proceedings involving the Interim Intervention Order made on 10 August 2017 and the Final Intervention Order made on 14 December 2017.(v) Any other relevant matter; All matters relevant to this interim judgment have otherwise been considered in these reasons. Section 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child This is an interim decision. The orders that I intend to make are consistent with the evidence provided in the Family Report.Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevantAppointment of an Independent Children’s Lawyer In this case I consider that it is in the best interests of X that an Independent Children’s Lawyer be appointed pursuant to s.68L(2) of the Act. Equal Shared Parental Responsibility Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility. Section 61DA of the Act provides as follows:(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence.(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I refer to the matters in paragraphs 78 and 79. Therefore the matter of equal shared parental responsibility remains a matter for the Final Hearing.Consideration and Conclusion In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to X, as suggested by the Full Court for interim matters in Marvel v Marvel[69].[69] (2010) 43 Fam LR 348, at [120]. I have followed the legislative pathway as require by Goode v Goode[70], to the extent that I have been able, given that this is an interim case and the evidence is untested by cross examination. [70] (2006) 36 Fam LR 422, at [81]-[82]. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant for this interim application. For the reasons set out herein, I determine that Interim Orders that have summarised under the heading ‘Synopsis’ are in the best interests of X as required by s.60CA of the Act. Orders will be made accordingly.